SHARON N MEDINA, Employee
ACACIA MENTAL HEALTH CLINIC LLC, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The employee worked for eleven weeks as a psychotherapist for the employer, a mental health clinic. Her first day of work was February 4, 2010, and her last day of work was April 22, 2010 (week 17).
The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.
The employer and employee agreed that the employee would be paid $22.50 for each client session in the office and $70 for each session at a client's home.(1) Although the parties disputed the exact amount that the employee earned during the employment, they agreed that it was at least $6,015. The employee was paid nothing in February, $500 in March, and $695 in April. After the employee received her March pay, she spoke with the employer because her pay did not reflect what she had earned in February. The employer would not pay the employee until it had received reimbursement for the services from the third party insurance company.
The employee experienced extreme anxiety toward the end of the employment, and was under a doctor's care for that anxiety as of April 16, 2010. She advised the employer that she was taking a leave of absence due to her anxiety, and her clients were rescheduled. The employee did not return to work thereafter, and advised the owner in the week after her leave of absence ended, week 19 of 2010, that she would not return to work for the employer because she was not making any money. Her decision not to return to work for the employer constituted a quitting of the employment.
The next issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of benefits.
Wis. Stat. § 108.04(7) provides that an employee who quits her employment is ineligible for benefits until she requalifies, unless her quitting falls within a statutory exception. One such exception is set forth in Wis. Stat. § 108.04(7)(b), which provides for payment of benefits if an employee quits with "good cause attributable to the employing unit." This has been defined as a real and substantial act or omission by the employer that reasonably justifies an employee's decision to become unemployed rather than to continue working. See Dornbush v. Manning Counseling Center Inc., UI Hearing No. 03007623MD (LIRC April 30, 2004), citing Stetz v. DILHR, et al., Dane County Circuit Court, Case No. 136-215 (February 13, 1973). Typically, before good cause can be shown, the employee must establish that she explored alternatives short of quitting, and gave the employer an opportunity to address and resolve the matters at issue. See, e.g., Collier v. Rubbermaid & Co., UI Hearing No. 99604071RC (LIRC Oct. 14, 1999).
In this case, the employee discussed the disparity between her earnings and her March paycheck with the owner. However, after that conversation and for the remainder of her employment, she continued to be paid far less than what she earned, with only an expectation that she would be fully paid at some future time. The employer was unwilling to modify its payment arrangement, although aware of the employee's concerns.
Wisconsin law, at Wis. Stat. § 109.03(1) provides, in part, as follows:
(1) Required frequency of payments. Every employer shall as often as monthly pay to every employee engaged in the employer's business, except those employees engaged in logging operations and farm labor, all wages earned by the employee to a day not more than 31 days prior to the date of payment. . . .
In other words, employers are required to pay their employees all wages earned within 31 days. In addition, Wis. Stat. § 109.03(5) provides that "no employer may by special contract with employees or by any other means secure exemption from this section." Any agreement that the employer may have made with the employee in this case cannot operate to waive this statutory provision's applicability.
The commission notes that, although it has found that an isolated failure by an employer to properly pay a worker does not provide good cause for a quit, that is not the situation in this case. During her employment lasting almost three months, the employee was paid $1,195, only 20% of what she had earned, amounting to a little more than $100 per week. This financial insecurity caused the employee extreme anxiety, resulting in her decision to quit the employment. Given these circumstances, the commission concludes that the employee's quit was with good cause attributable to the employer.
The commission therefore finds that in week 19 of 2010, the employee terminated work with the employer with good cause attributable to the employer, within the meaning of section 108.04(7)(b) of the statutes.
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
In its petition for commission review, the employer reiterates its compensation arrangement with the employee, stating that this policy was established at the time the employment began and that the employee agreed to the arrangement, similar to a contingent fee arrangement. The employer also notes that, in the appeal tribunal decision, the ALJ cited to the wrong statutory provision relating to the reason for the employee's quit.
The commission understands the employer's position. However, it is not reasonable to expect an employee to work and earn wages without being paid. As noted in the decision, the employee worked for eleven weeks for the employer, earning at least $6,015, before she left on her medical leave of absence. At that time, she had been paid only $1,195 and was not assured as to when or if she would be paid the remainder of her earnings. The commission finds that this situation gave her good cause attributable to the employer to quit the employment, and has rewritten the decision to reflect its analysis of the matter, citing the proper statutory provision.
cc:
Edward David
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uploaded 2011/04/29